This is an update on the Adrian Heaps “public money for defamation lawsuits” case we mentioned last week, via the Toronto Star:
Councillor Adrian Heaps says he will refuse to accept any reimbursement for the legal bills he ran up defending himself in a lawsuit arising from the 2006 election…
Heaps (Ward 35, Scarborough Southwest) was sued for defamation by Michelle Berardinetti, who ran second in the election by 89 votes. Council voted to give Heaps a one-time payment of about $60,000 (before taxes), so he could cover his legal expenses…
Heaps said in an interview that he told city officials within days of the vote not to give him any money – and said he has never received any money from the city.
Monday, he wrote a letter to all councillors saying: “I will not accept any reimbursement for legal costs under any circumstances.”
Surely the heroic work of your humble CCLA Rights Watch correspondents in bringing this issue to the public’s attention played a decisive role in this recent turn of events, although I’ll reluctantly admit that these folks may have played a supporting role. However, the best course of action for the Toronto City Council becomes less certain the more consideration one gives to the issue at hand. Is it significant, even determinative, that Heaps was defending himself against a defamation suit, as opposed to launching one against another (as in the case of Councillor Sandra Bussin)? Surely, it is in the best interests of open public discourse that both councillors and their critics/opponents should be free to debate and criticize in the public realm relatively unencumbered. Thus, insofar as city councillors such as Mr. Heaps would feel unduly restricted in their public statements if not financially supported in the event of a lawsuit, are there not good policy reasons for extending public funds to defend councillors? Heaps makes a similar point himself, in the Star article linked to above:
“The lack of protection for newly elected councillors being sued by unsuccessful candidates strikes a blow to our democratic system by discouraging citizens to run for office,”
In a similar vein, should we be concerned about the possibility that such actions, if devoid of a strong defence, may discourage councillors from voicing strident criticisms of candidates opposite or other public officials?
There are no obvious solutions here. Suggesting that only defences against defamation suits should receive public funds runs the risk of defending those who obviously and harmfully slandered another. Proposing that no lawsuits should be covered by public funds may lead to some degree of libel chill, if frivolous suits against councillors become commonplace. Alternatively, supporting a process where decisions are made on a case by case basis on the merits of the action/defence would put one in the uncomfortable position of assuming that this City Council, which has not proven itself the most fantastically competent organization in the past, has the ability to make such judgments in the best interests of open public discourse. Other potential considerations abound: should weight be given to the role unjustifiable and irrelevant personal attacks have played in the degradation of political discourse? If public policy dictates that individuals should be supported in defending themselves against frivolous lawsuits that run the risk of limiting freedom of expression and public debate, why limit that funding to those (eventually) elected as councillors?
One potential solution was suggested by Councillor Karen Stintz, who proposes
a “candidate protection fund,” which could require all candidates to pay into, and then dip into, in the event of a lawsuit.
This seems sensible; however, I regret to say that it may not be deemed the ideal solution by some councillors. Personally, I would like to think that a compromise decision could be reached, perhaps along the lines of a “public interest” clause, whereby either actions or defences in defamation suits could potentially be covered if the engaged councillor could show, transparently and with the opportunity for public scrutiny, that it was in the public interest that they be given tax dollars for their defence or action. But I fear that may be asking far too much.
This is definitely an increasingly common debate, and there are a number of cases before the courts that touch on this issue. One additional wrinkle in the Heaps case – the reason the Heaps funding was controversial from a legal/policy perspective was not strictly because it in the context of defending a defamation suit (although that definitely didn’t help) but because he was not actually a council member when he made the allegedly defamatory statements. Many policies provide for politicians to be funded for defamation suits. Heaps, however, was only a candidate, and some of the concerns are that this would (a) extended funding too far and (b) create a double standard for those who were defamed and got elected, and those who were defamed and did not get elected…
Of course, the other troubling thing about the Toronto policies regarding funding of suits is that, IIRC, they’ve recently updated it to include councillors initiating suits against others. Talk about potential libel-chill.
Abby,
Thanks for the clarification – I hadn’t considered the points you raised. I certainly understand the concern about “extending funding too far”, however, I’m not as convinced that the same justification (i.e., to allow those running for office to speak their minds without fear of undue financial penalty) does not apply equally both to both unelected and elected candidates. Of course, there could be another reason to use public funds to cover the potentially defamatory statements of sitting councillors (and not those merely running for office) beyond that it is in the public interest to encourage a very broad range of opinions, however I can’t think of any presently. Perhaps the issue will be made more clear once it is considered more fully by the City Council. I will keep a keen eye on the situation, and report back as warranted.
Dan,
Am I to assume that you’d argue that whether the councillor was the plaintiff or the defendant in a defamation suit should be a (if not the) primary consideration in the allocation of public funding?
Benjamin:
Absolutely it should be a factor. Thankfully (I doublechecked) council didn’t pass the plantiff-side funding proposal.
Protecting councillors from lawsuits while engaging in City business is fairly standard. Allowing them to use city funds to sue denizens who disagree with them just opens the city up to a parade of SLAPPs.
Tres intiresno, gracias